Mahabharata to Maharashtra - Use and Misuse of Constitutional ‘Emergency Powers'

Mahabharata to Maharashtra - Use and Misuse of Constitutional ‘Emergency Powers'

By:

Vijay SARDANA

Advocate, Delhi High Court

Arbitrator & Fellow, Indian Council of Arbitration
Regulatory Compliance & Techno-legal Expert

IFC Trained Corporate Governance Trainer for Board Leadership Training
Email: technolegalsardana@gmail.com

In the Mahabharata epic, which describes the Kurukshetra war, the two sides agree on the following rules but these rules were broken to suit the political interest.

The Rules of Mahabharata:

• Fighting must begin no earlier than sunrise and, should end by exact sunset. (Broken on the 14th day, after Jayadratha was slain).

• Multiple warriors must not attack a single warrior. (Broken several times, most notably in the 13th day, when Abhimanyu was slain). 

• Two warriors may duel, or engage in prolonged personal combat, only if they carry the same weapons and they are on the same mount (no mount, a horse, an elephant, or a chariot). (Broken several times).

• No warrior may kill or injure a warrior who has surrendered. (Violated when Satyaki slew an unarmed Burishravas).

• One who surrenders becomes a prisoner of war and will then be subject to the protections of a prisoner of war.

• No warrior may kill or injure an unarmed warrior. (Broken when Arjun slew Karna when the latter was unarmed trying to take out his chariot wheel from mud).

• No warrior may kill or injure an unconscious warrior. (Broken when Abhimanyu was slain).

• No warrior may kill or injure a person or animal not taking part in the war. (Broken several times when warriors slew horses and charioteers of their enemies).

• No warrior may kill or injure a warrior whose back is turned away. (Shakuni and Arjuna broke that rule).

• No warrior may strike an animal not considered a direct threat. (Broken when Bhima killed an elephant named Ashwathama).

• The rules specific to each weapon must be followed. For example, it is prohibited to strike below the waist in mace warfare (Broken in the final combat of Bhima and Duryodhana on the night of the final day of the war).

• Warriors must not engage in any 'unfair' warfare whatsoever.

• The lives of women, prisoners of war, and farmers are sacred.

• Land should not be pillaged.

In today’s Bharat, the rules of governance are defined in the Constitution of India. In the constitution, emergency powers are given to ensure better governance in case of emergency provisions. Many checks and balances are created so that emergency measures should not be misused.  What happened in Maharashtra on the night of 22^nd Nov. 2019 raises a serious issue of why all checks and balances failed when emergency powers were used for political gain by ruling political party. This needs serious debate and also relook at the how-to insulate the misuse of emergency powers given in the constitution.

Many readers and commentators will forget what happened in Maharashtra after some time, therefore let me add some background to it.

Preamble:

After the assembly election in Maharashtra, no political party was in the position to form the government. Pre-poll alliance because of their own political ambitions could not survive. Hence the President rule was imposed after the expiry of the term of the previous government.

Turning point:

Till the last page of the newspapers were printed around midnight everything was normal and political discussions were going on about government formation.  When the whole country was sleeping few political functionaries, political offices and administrative machinery were working at full speed and the whole country woke up to the news that the new government was formed in Maharashtra and the Chief Minister has taken the oath of the office. It is important to understand what happened in the early hours of 22^nd Nov. 2019 and who played what role? More important as democracy, are these political games good for India or not.

It was told that Prime Minister of India used ‘emergency powers’ at his discretion and by-passed all established norms of consultation and ensured that representative of his political party is sworn in as Chief Minister of the State along with a person as Deputy Chief Minister whose the party had no mandate or majority to rule the state.

What are the Emergency Provisions of the Constitution? When these should be used?

Part XVIII of the Constitution speaks of emergency provisions. The emergency provisions therein can be classified into three categories:

(a)   Articles 352, 353, 354, 358 and 359 which relate to emergency proper - if we can use that expression,

(b)   Articles 355, 356 and 357 which deal with the imposition of President's rule in States in a certain situation, and

(c)    Article 360 which speaks of financial emergency.

In recent times, emergency powers were used by the government for various reasons. The use of such powers can be for reasons like national security, protecting the lives of people, ensuring law and order, protecting the constitutional rights of the people and to prevent man-made crisis.

The recent development in the state of Maharashtra has opened up a new debate, should emergency provision be used for political gains by the ruling party?

The Developments at the midnight of 22^nd Nov. 2019:

Maharashtra plunged into a political crisis when no party or the alliance could form a government even after 18 days of the declaration of the assembly election results. President's rule was imposed in the state on November 12, 2019.

Suddenly on Saturday midnight many dramatic developments happened.

The approval of the Union Cabinet for the revocation of the President's rule in Maharashtra was given by the central government by invoking a special provision of the Government of India (Transaction of Business) Rules which gives the prime minister special powers,

In the same night, President House released a note, "In exercise of the powers conferred by clause (2) of Article 356 of the Constitution, I, Ram Nath Kovind, President of India, hereby revoke the proclamation issued by me under the said article on the 12th day of November 2019, in relation to the state of Maharashtra with effect from the 23rd day of November 2019," the proclamation signed by Kovind read.

After a few minutes, on the same night, After the President's signature on the proclamation, a gazette notification to this effect was issued by Union Home Secretary at 5.47 am on Saturday morning, putting an end to the President's rule and facilitating the formation of a government in Maharashtra.

After 2 hours, by 7:50 am, Governor of Maharashtra announces the oath-taking ceremony and new Chief Minister and Deputy Chief Minister were sown in for the state of Maharashtra.

When the Supreme Court passed the order and directed for the Floor test, both the Chief Minister and Deputy Chief Minister resigned by saying that they do not have the majority in the house.

Now the bigger question is:

Hon’ble President, Prime Minister, Home Minister, Union Home Secretary, Governor of the state, Cabinet secretary of both Union Government as well as State Government worked so fast that everything was concluded within 4 hours to get the work done before the daylight break. All these efforts collapsed when Supreme Court asked to prove the majority on the floor of the house.

All this started with the use of Emergency Powers given in the constitution.

The question is what should be the criteria.

Let us understand which rules were used:

To revoke the President’s Rule, the government has used a special Section in the Union government’s Transaction of Business Rules, which allows for revocation of President’s Rule without Cabinet approval if the Prime Minister “deems it necessary”.

What is this rule, known as “Rule 12”?

Rule 12 of the Government of India (Transaction of Business) Rules, 1961, allows the Prime Minister to depart from laid down norms at his discretion.

Titled “Departure from Rules”, Rule 12 says, “The Prime Minister may, in case or classes of cases permit or condone a departure from these rules, to the extent he deems necessary.”

In such situations also, the process of examination and inter-ministerial consultations would need to be followed. All cases under Rule 12 are mandatorily required to be routed through the Cabinet Secretary and should, in no case, be sent directly to the Prime Minister.

The following guidelines are required to be followed in cases where Rule 12 is proposed to be invoked:

a)    Proposals shall be moved only by the administrative Ministry/ Department concerned with the subject, under the Government of India (Allocation of Business) Rules, 1961. In this case Home Ministry on the basis of the report from the Governor of Maharashtra.

b)    Proposals shall be accompanied by a detailed justification clearly bringing out the urgency involved in the matter and the exceptional circumstances that require it to be processed under Rule 12 along with a statement specifying the reasons, why it could not be processed for obtaining the approval of the competent authority in time. It will be useful to see the reasons given for the use of emergency powers in this case.

c)     Secretary of the Department/Ministry will ensure that all essential requirements including inter-ministerial consultations have been met before submitting the proposals for approval under this rule. This fact is to be mentioned in the proposal submitted for approval under Rule 12. It will be useful to study what was the communication between Home Secretary and all other relevant departments in Union as well as State government.

d)    The Ministry/Department concerned shall route the proposal through the Cabinet Secretary after obtaining the approval of the Minister-in-charge in all cases and also of the Minister of Finance in matters involving outgo of funds, or other concerned Ministers, where the subject matter impinges on their business". It means the Cabinet Secretary also gave approval for the same at the midnight itself.

The genesis of the Provision:

Article 77 of the Indian Constitution has the heading "Conduct of the Business of Government of India".

This shows that under this article the function of the Government of India regarding its business is stipulated. Clause 3 of the said Article states that "the President shall make rules for the more convenient transaction of the business of the government of India, and for the allocation among Ministers of the said business".

The Government of India (Transaction of Business) Rules 1961 has been framed under Article 77(3). The power to make rules of Business under the clause may be traced from Article 53(1) which says that the executive power of the union shall be exercised by the President directly or officers subordinate to him in accordance with the constitution, and Article 74(1), under which he is required to discharge his functions with the aid and advice of the Council of the Ministers.

This means that the decisions of the Government of India are not always taken personally by the President. The decision may be taken by the Minister concerned or even the Official authorized to take the decision under the Rules of Business made by the president under Article 77(3). It has been held in a number of cases that the working of the government will stop if all the decisions were required to be taken by the President or even by the Ministers. The delegation of power is a common thing in running a government.

Article 77(3) of the Constitution, for better administration, makes two provisions:

1.     Empowering president to frame rules for the smooth-running transaction of government business;

2.     Allocating the said business among the ministers

Rules made under (1) are the rules of business pertaining to administration.

Under these rules officials authorized can take decisions on behalf of the Ministers concerned. Minister has overall control of the business taken by the department but practically the majority of decisions are taken by the authorized officers. The endorsement through the signature of the minister approves the work.

Analysis of the Rule dispensing special power to the Prime Minister

A thorough reading of the rules in the draft will make it crystal clear that the rules are mostly concerned with the operation of the ministries. It lays down the rules for the efficient working within the ministry for better administration and redressal of the issues.

It also embodies in its second schedule cases which require the approval of the Cabinet, to name a few, it includes cases related to legislation including the issue of ordinances, cases in which a difference of opinion arises between two or more Ministers and a Cabinet decision is desired, Proposals to vary or reverse a decision previously taken by the Cabinet, etc.

One of these rules is Rule 12 of the ToB, it says that "The Rule 12 says: "Departure from Rules- The Prime Minister may, in any case, or classes of cases, permit or condone a departure from these rules, to the extent he deems necessary".

The words "to the extent he deems it necessary" bestow discretionary power on the Prime Minister.

It empowers the Prime Minister to permit or condone a departure from these rules to the extent deemed necessary to meet a situation of extreme urgency or unforeseen contingency in any particular case. In the case of Maharashtra, in the absence of any government, the governor has to act as per the advice of Council of Ministers under Article 163(2) but in this particular case there was no government; thus, the governor cannot act as to the advice of the Council of Ministers. Hence, as per the report of the Governor, President's rule was imposed in Maharashtra.

Under what circumstances is Rule 12 used?

Rule 12 is usually not used to arrive at major decisions by the government. However, it has been used in matters such as the withdrawal of an office memorandum or signing of MoUs in the past.

The last big decision taken through the invocation of Rule 12 was re-organisation of the state of Jammu and Kashmir into the Union Territories of Jammu and Kashmir, and Ladakh on October 31.

The proclamations issued by the President that day, dividing various districts between the two Union Territories, were issued under Rule 12.

The Cabinet gave post-facto approval to the same on November 20.

So, what happened in the case of Maharashtra?

Sources said that once Governor Koshyari had been informed that the BJP had the numbers to form a coalition government with the NCP, and after he had verified the claim, Raj Bhavan worked through Friday night to prepare the necessary recommendation for the revocation of President’s Rule.

At 5.47 am on Saturday, the notification revoking President’s Rule was published in the government gazette. This indicated that the notification was actually signed by the President at some point earlier than that time.

At 7.50 am, the new chief minister and deputy chief minister were sworn in.

Who in the government knew what was going on?

The invocation of Rule 12 would appear to indicate that even top leaders in the BJP were not aware of the impending move. Many top ministers were, in fact, out of Delhi, and were not available for a Cabinet meeting.

Defence Minister Rajnath Singh was in Lucknow after returning from Singapore. Road Transport and Highways Minister Nitin Gadkari had gone to Nagpur after addressing a rally in Ranchi. Both Rajnath and Gadkari are also members of the BJP Parliamentary Board.

Within the due process of law, but without the spirit of the Constitution:

When media asked about the revocation of President’s Rule without Cabinet approval, Union Law Minister Prasad said on Saturday: “All decisions have been taken after due process of law. There is a provision for ex-post-facto approval of the Cabinet, and the Prime Minister has special powers. Everything is in order.”

And what about the letter from Fadnavis to the Governor that the Supreme Court has asked for?

Prasad maintained that Ajit Pawar, being the leader of the NCP Legislature Party in Maharashtra had the legitimate right to align with any party. “It is very clear that Devendra Fadnavis is the leader of the BJP legislative party and Ajit Pawar is the leader of the NCP legislative party in Maharashtra. That is why it is perfectly legitimate for the Governor to call the parties which claim they have the majority,” Prasad said.

It is important to note that NCP leadership was working overtime to create a political alliance with opposition parties to stake a claim in the government. Suddenly NCP coming forward to join BJP to stake a claim was actually the biggest surprise to all in the country. That is why this issue got so much attention.

What is the responsibility and duty of the President?

Article 356 carries the marginal heading "Provisions in case of failure of constitutional machinery in States".

The fact is neither clause (1) nor for that matter, any other clause in the article employs the expression "failure of constitutional machinery". On the other hand, the words used are similar to those occurring in article 355, namely, "a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution".

If the President is satisfied that such a the situation has arisen, whether on the basis of a report received from the Governor of the State or otherwise, he may, by proclamation, take any or all of the three steps mentioned in sub-clauses (a), (b) and (c).

It would be appropriate to read the entire clause (1) of article 356 at this stage:

"(1) If the President, on receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation –

(a)  assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State;

(b)  declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c)   make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State:

Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.".

Clause (2) says that such a Proclamation may be revoked or varied by a subsequent Proclamation.

Question is should the government apply Rule 12 required in such a situation for political gains?

To revoke President's the rule in Maharashtra, a proposal was to be forwarded by the Union Cabinet.

The Central Government invoked special power under Rule 12 of ToB, 1961, to bypass the requirement of a Cabinet meeting to be done before revoking President's rule.

When the Supreme Court ordered floor test, both Chief Minister and Deputy Chief Minister resigned by giving reasons that they do not have the required strength to prove the majority on the floor of the house.

The way forward:

Is there a need to develop a clearly defined criteria based system to prevent the use and misuse of the emergency power for political gains by ruling parties?

If yes, what it should be.

Any suggestion, please do share.